impact of human rights act 1998 Flashcards
booklet 3
impact of hra- what did section 1 bring
first 3 articles
Protection of Property
Right to Education
Right to free elections
what is the case to back this
sunday times v uk
what are the 3 purposes of the hra 1998
To ‘bring rights home’ as promised in the Labour manifesto. This was based on allowing UK citizens to challenge human rights issues in UK courts rather than having to go to the ECtHR
Establishing a ‘rights culture’ in the UK
Enabling UK courts to contribute to and help shape the ECtHR case law and decisions
judicial decisions- what does section 2 state
Any court/ tribunal deciding a case under HRA must take into account all past judgements, decisions, declarations and opinions of the ECtHR
judicial decisions-what does section 3 state
UK law should wherever possible be interpreted so it is compatible with the ECHR
what 2 cases show there is conflict in how these sections of the HRA have been interpreted by the courts in England and Wales
R (Alconbury) v Secretary of State for the Environment (2001)
Kay v Lambeth (2006)
what does the case of R (Alconbury) v Secretary of State for the Environment (2001) tell us
house of lords held that UK courts should ‘‘in the absence of some special circumstances, follow any clear and consistent rulings of the ECtHR
what does the case of Kay v Lambeth (2006) tell us
Where the court of appeal is faced with a house of lords precedent which is inconsistent with a decsision of the ECtHR, the court said here that it should follow domestic precedent and refer the case to appeal to the house of lords
So if a UK court is faced with conflicting domestic UK precedent (legal principle that courts should follow previous decisions in similar cases) & a decision of the ECtHR, it should follow domestic precedent and refer a case for appeal.
judicial decisions- what does section 4 allow
allows UK courts to make a declaration of incompatibility when a UK act of parliament is not compatible with the ECHR
If a UK court is faced with conflicting UK Act of Parliament & an article of the ECHR, it should follow UK law and make a declaration under section 4.
Only Parliament can overrule UK legislation – courts cannot do this.
can uk law make a declaration of incompatibility
yes! :)
your so clever
what does making a declaration of incompatibility protect
UK parliamentary sovereignty (supremacy)
what can parliament do after a deceleration of incompatibility is made
after a courts declaration parliament can decide whether to repeal (get rid of). Amend (change) the legislation or simply to do nothing and ignore court judgement
if a change in law happens it only affects future cases- the decision in the case will not be change retrospectively
what are 3 cases to back this
Bellinger v Bellinger (2003)
R (Anderson) v Secretary of State for the Home Dept (2002)
A and Others v Secretary of State for the Home Dept (2004)
what happened in the Bellinger v Bellinger (2003) case (gen relevant)
court made a declaration of incompatibility under the Human Rights Act 1998 regarding the non-recognition of gender reassignment for the purposes of marriage.
Gender recognition act 2004
C was a transgender woman who wanted to marry a man
House of lords didn’t legally consider the marriage as UK law at the time did not recognise a change in gender
impact of hra- what does section 6 state
it is unlawful for a public body to act in a way which is incompatible with the articles
this can be brought by an individual in a court or tribunal
action can only be taken against a public body carrying out a public functions (not private business, companies, individuals need to be connected to gov)
what type of relationship must this be
must be a vertical relationship (have more power in decision making e.g governemnt) between the individual and state
e.g gov departments (but not specific ministers), local authorities, chief constables, prison gpvernets, education, NHS
relations between private individuals are horizontal and not covered by HRA
hra and uk legislation- what does section 10 give
Gives relevant government ministers power to amends any UK legislation that has been declared incompatible with ECHR, without having to go through the full parliamentary process
hra and uk legislation- what does section 19 state
When parliament introduces a new law the relevant minister must make a statement of compatibility before second reading that is compatible with ECHR
what can this gov minister state during their promotion of a bill through parliament
state it will be necessary to depart from (ignore) ECHR.
This power has mostly been used to relax or suspend Articles 5 & 6
This must be approved by parliamentary resolution
remedies under hra- what does section 8 state
If actions of a public authority are unlawful, any remedy that is ‘just and appropriate’ should be applied by the court
This could mean damages (compensation) or an injunction.
what is a case example of this
Metropolis Police Commissioner v DSD, NBV (2015)
Two female victims of aserial rapist awarded compensation as they said the police had not properly investigated their crimes.
before 1998, what gave uk citizens protection
Magna Carta and under the Common Law.
how can decisions of government departments be challenged
judicial review
what is an example of an act of parliament created to express rights
Police and Criminal Evidence Act (PACE) 1984, which gives rights to suspects when they are detained by the police.
what is devolution
power being passed to Scotland, Wales and Northern Ireland to make laws for themselves in certain areas
confirmed under:
Scotland Act 1998 (Scottish Parliament)
Government of Wales Act 2006 (Welsh Assembly)
Northern Ireland Act 1998 (Northern Irish Assembly)
what is entrenchment
a procedure that makes an Act of Parliament very difficult to amend or repeal
why is this basically impossible in uk law
parliamentary supremacy
because you can’t bind a future parliament therefore you can’t prevent a future parliament from repealing a law
what is the Independent Human Rights Act Review
government commission looking into the issues with the HRA
what did this recently recommend
s.2 (court should ‘take into account’ past decisions of ECtHR) should be amended to clarify order of priority for UK courts to use when applying various types of laws, which should be:
UK legislation
Common law and other case law
ECtHR decisions
